"Computer Juridisms"
Cornelia Vismann and Markus Krajewski Cornelia Vismann (1962–2010) was Professor for Theory and History of Cultural Techniques at Bauhaus University Weimar, before she was a researcher at the Max-Planck-Institute for European Legal History in Frankfurt am Main, Germany. She worked for many years previously as a lawyer in Berlin and the former East Berlin. Markus Krajewski is a German media historian. Markus Krajewski teaches media history and history of sciences at the Bauhaus University in Weimar, Germany. He is the programmer of Synapsen, a hypertextual card indexing and knowledge management software, available from http://www.verzetteln.de/synapsen Computer Juridisms 2008 In this Grey Room ''article, Vismann and Krajewski argues that there exists as "mutual mimesis" between computers and the law, by which "the fact that both legal routines and digital media exery discourse regimes--that is, both use control mechanisms of inclusion and exclusion, eccess and non access--qualifies the law and the computer alike as symbolic machines" (91). Because of the "ease by which posing, implementing, and applying a norm are achieved in technology compared with the cumbersome procedures that a legal code must pass through", computers actually beat law at its own game, becoming "as sovereign as the law" (93). This, in turn, renders the law's application to media paradoxical, for is fails to realize that it too is mediated: "Legislators fail to realize that the universal machine's own inner juridisms render law ineffective," for law does not "reflect on its own dependence on media; that is, on its own mediality" (101). The significant moment in the computer's juridification came in 1971, when Xerox developed the first desktop computer, the first computer for "users". Once users were established as not programmers, they lost any access to understanding how the machine functions; they became subject to its decisions. Similarly, the programmers, themselves programmed, are also in this loop, as they can only operate in source code and are bound to the protocols that entails. Hands on access to the "law" of the computer (with its sovereign the microchip) is no longer possible (95-6). The law only takes interest in the computer at the moment of socioeconomic/commercial concerns, and even then, the law is such that "the person who is communicating and not the communication echnology becomes the object of legislation" (100). This is backwards for Vismann, since the law must first understand itself as ''in transfer: "Media are not mere tools for free speech. They are nothing less than the conditions of possibility for communication. ... Needed is a media theory that liberates media from its teleological confines. ... Required is a shift in focus from the ends of communication to the processes of transfer itself. Such a shift challenges the legal traditions of applying rights, for neither the bearer not the guarantor of rights, neither the subject nor the state, can any longer be regarded as preestablished, stable entities. They are instead already in transition, part of the transfer process" (102). At the end of this essay, Vismann and Krajewski take up RFCs, which brings their work into focus with Galloway's. The RFC is part of the historical mythology of the internet, in which unregulated, co-operative engagement through self-regulation and communication. Rather, Vismann and Krajewski insist, RFCs still require codification to become active as codes: "the general picture of collaborative creation obscure the fact that an agent (either human or human-built) must filter all of the comments and decide which are in force and which become code" (105). In the case of the RFC, this person was Jon Postel. For the authors, this proves that "computer codes are juridical, even if they stem from an open culture of commenting" (105-6). Vismann notes that Galloway (in an essay from Wendy Chun's anthology) considers this centralization to be necessary to the process of open access. Simultaneously summarizing and critiquing his position, she writes: "The paradox of the intrinsic juridism of the code that claims to be other than law is interpreted here as the dialectic of freedom. Autonomy requires an autonomy-granting institution" (106). Vismann continues, "The turn from comment, to codification, from a culture of permanent commenting to a legal logic of closure, is thus presented as unavoidable, presupposing an intrinsic desire for order" (107). Clearly, Vismann and Krajewski remain skeptical. However, their alternatives aren't flushed out (in Grey Room anyway). While we may be tempted to say that the move toward codification is unavoidable, we must remember that one part of the power here is with the engineer: "What is needed is a persepctive on computer developments that is as equally well-informed in media as in law in order to sort out the latent juridisms that contradict the predominant tales of self-regulation, in legal as well as in vitual-digital contexts" (107).